Tag: Labor & Employment

Black Lives Matter, Racial Unrest and Corporate Culture – How Do Employers Respond?

As the daily news continues to show protests and calls for justice in response to the death of George Floyd and others at the hands of police officers, there is, unsurprisingly, a desire from employees to hear from their employers regarding the ongoing violence and racial unrest in our communities and across the country. Many employers recognized the gravity of the racial unrest by celebrating, for the first time, Juneteenth on June 19, 2020, a holiday celebrating the emancipation of slaves. But is that enough? How do employers respond?

As a practical matter, employers must be aware of the application of Constitutional free speech protections, employee rights under the National Labor Relations Act and state laws that may apply to expressive employee conduct, as detailed in our previous post.

Beyond that, employers can choose the level of their response and engagement, or choose to do nothing at all—there is no right or wrong answer or a “one size fits all” solution. The most common reaction from employers is to acknowledge the unrest and issue a statement of support. Many employers have also chosen to make a public announcement expressing solidarity and support of the Black Lives Matter movement.

Though these responses are important, they fail to accomplish the more ambitious goal of many employers, which is to articulate and implement a strategy for lasting and real change within their own workplace and beyond. This action requires substantial reflection, consideration, time and effort.

So, for employers looking to do more, where do they start?

  • Leadership: Good leaders serve as good models. Leaders can lead by example and provide a safe workplace where all employees feel respected and included. As it pertains to the current environment, leaders can be open about their own lack of knowledge and share their growth and experiences with their workforce.
  • Anti-Discrimination Policies: Employers can review their policies regarding equal employment opportunity and workplace discrimination. Though most employers articulate such policies as a matter of course, it is important to reinforce these policies and remind employees of what is expected of them and to reassure employees who may be feeling vulnerable at this time.
  • Diversity Initiatives: Employers can focus on building diversity within their ranks by ensuring that recruitment, hiring, retention and advancement are truly objective and based on merit. Employers can also consider implementing a version of the National Football League’s recently-revised “Rooney Rule,” wherein at least two non-white candidates must be considered for open head coaching positions, and one non-white candidate must be considered for coordinator, senior football operations or general manager positions. Forming a diversity committee or task force is another way to ensure that minority members of your workforce are being heard and understood by management.
  • Awareness: Employers can educate their employees about prejudice and racism in its various forms; this can consist of formal training or open forums in which employees can communicate with one another and, importantly, with their co-workers of color. Employers can also make educational materials available for employees.
  • Community Involvement: Employers can publicly support the movement in the form of donations or activism. Doing so can create a sense of pride among your workforce, and it can also help in attracting future hires that share the principles of your workplace.

© Copyright 2020 Squire Patton Boggs (US) LLP

ARTICLE BY Anne Marie Schloemer at Squire Patton Boggs (US) LLP.

For more on employer-employee conduct see the National Law Review Labor & Employment law section.

NLRB Approves Company’s Baseball Cap Rule

Under Section 8(a)(1) of the National Labor Relations Act (“NLRA”), employers are permitted to maintain uniform and dress code policies in the workplace, so long as such policies do not prohibit employees from wearing union insignia, absent special circumstances, such as health and safety concerns. While seemingly straightforward, application of this rule can be quite meticulous in practice. A recent National Labor Relations Board (the “Board”) case, World Color (USA) Corp., a Wholly-Owned Subsidiary of Quad Graphics Inc., 369 NLRB No. 104 (June 12, 2020), provides guidance as to when an employer can restrict apparel logos at work.

When Can You Limit Apparel to Company Logos?

World Color (USA) Corp., is a Wisconsin company that maintains a facility in Nevada, where it prints commercial inserts for newspapers.

In early 2011, World Color distributed a set of mandatory guidelines to its employees containing a uniform and dress code policy requiring that all employees wear authorized company uniforms as a condition of employment, and to dress and groom professionally at all times. The guidelines permitted employees to accessorize the uniform, but required the accessorizing to be “in good taste and in accordance with all safety rules.” The guidelines further required that if “hair… could potentially get caught in [production equipment], it must be secured… with a hairnet or other means. Baseball caps are prohibited except for [company] baseball caps worn with the bill facing forward.” World Color further prohibited wearing buttons and pins on the production floor as a safety hazard.

After the union filed a charge, the Administrative Law Judge (ALJ) found that the policy was unlawful because it prohibited employees from wearing baseball caps with union logos and from displaying union insignia on hats.

After several appeals, however, the Board found that the policy did not prohibit employees from engaging in the protected activity of wearing caps bearing union insignia. Rather, the cap policy merely required employees to wear a company cap to align with the overall company uniform. The Board noted that employees were not prohibited from wearing union insignia on the company cap as long as they were “in good taste and in accordance with all safety rules”. As such, the Board found that the uniform policy was lawful because it permitted employees to wear union insignias on company caps as long as they did not pose a safety risk.

What This Decision Means for Employers

Uniform and dress code rules are just one of a great number of issues that employers face in ensuring that their workplace policies comply with the mandates of the NLRA. The NLRA applies to almost all private sector employers nationwide, whether their employees are currently represented by a union or not. Employers should be aware of the level of scrutiny that can be placed on their workplace policies — by unions, by ALJs, and by the Board. Employers should be on the look-out for uniform and dress code provisions that:

  • Specifically prohibit wearing union insignia;

  • Broadly prohibit wearing all non-company insignia, even without reference to unions;

  • Require company or supervisor approval or authorization of union insignia;

  • Unreasonably limit the size and shape of union insignia on uniforms;

  • Prohibit union insignia without documented specific and legitimate safety reasons.

We recommend that employers consult with experienced labor counsel to revise and review their workplace policies to fully comply with all state and federal requirements, including the NLRA. This way, employers will be in the best position to protect the right to efficiently and effectively maintain their businesses. Moreover, employers should be aware that even seemingly minor violations of the NLRA may compromise the ability to assert their rights in other contexts, such as possible threats of union organizing.

©2020 von Briesen & Roper, s.c

For more on dress code policies, see the National Law Review Labor and Employment law section.

U.S. Supreme Court Issues Landmark Ruling in Favor of LGBTQ Employees in the Workplace

Yesterday, in a much-anticipated opinion, the United States Supreme Court held that federal anti-discrimination laws protect LGBTQ employees in the workplace. This ruling provides much needed clarity for employers and resolves a court split in which some federal courts recognized that federal law prohibited LGBTQ discrimination, while others (including those covering Florida, Georgia, and Alabama) stated that LGBTQ discrimination was not unlawful.

This landmark ruling, in Bostock v. Clayton County, Georgia, arises out of three different appeals. In two of the cases, the employees were fired despite having long and successful careers after their employers learned that they were homosexual. In the third case, an employee who initially presented herself as a male announced several years later that she planned to transition to “living and working full-time as a woman.” The employer terminated her immediately.

The law at issue – Title VII of the Civil Rights Act of 1964 (“Title VII”) – prohibits discrimination in employment on the basis of race, color, religion, sex and national origin. However, the law makes no mention of sexual orientation.

Nevertheless, in a 6-3 decision, the Supreme Court held that all three terminations were illegal. In doing so, the Court noted that “[a]n employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

Although several states and municipalities have passed laws and rules prohibiting all or at least some forms of LGBTQ discrimination, this ruling clarifies that both sexual orientation discrimination and gender identity/transgender discrimination are prohibited by federal law throughout the United States.

The federal agency responsible for enforcing Title VII provides the following examples of LGBTQ-related conduct that it considers to be unlawful:

  • Refusing to hire an applicant because she is a transgender woman.
  • Firing an employee because he is planning or has made a gender transition.
  • Denying an employee equal access to a common restroom corresponding to the employee’s gender identity.
  • Harassing a woman because she does not dress or talk in a feminine manner.
  • Harassing a man because he dresses in an effeminate manner or enjoys hobbies that are traditionally associated with women.
  • Harassing an employee because of a gender transition, such as by intentionally and persistently failing to use the name and gender pronoun that correspond to the gender identity with which the employee identifies, and which the employee has communicated to management and employees.
  • Denying an employee a promotion because he is gay or straight.
  • Paying a lower salary to an employee because of sexual orientation.
  • Denying spousal health insurance benefits to a female employee because her legal spouse is a woman, while providing spousal health insurance to a male employee whose legal spouse is a woman.
  • Harassing an employee because of his/her sexual orientation (e.g., derogatory terms, sexually oriented comments, or disparaging remarks for associating with a person of the same or opposite sex).
  • Discriminating against or harassing an employee because of his/her sexual orientation or gender identity, in combination with another unlawful reason, for example, on the basis of transgender status and race, or sexual orientation and disability.

The penalties for non-compliance can be significant, including potential for significant emotional distress and other compensatory damages, punitive damages, and attorney’s fees.

This ruling is particularly significant to employers in jurisdictions like Florida that did not recognize that LGBTQ discrimination was unlawful under federal law. In light of this decision, employers should immediately take the following proactive steps to prevent and prohibit LGBTQ discrimination in the workplace:

  • Review your handbooks and anti-discrimination policies to ensure that sexual orientation and other LGBTQ-related status are included in your list of legally protected categories.
  • Consider adopting policies and procedures protecting the rights of transgender employees. For example, a transgender woman must be allowed to use a common female restroom or locker room facility, and dress code policies should permit employees to follow the dress code matching their gender identity.
  • Update your discrimination and harassment training modules to ensure that LGBTQ-related discrimination and harassment is addressed. Such training should include specific examples of what types of conduct could constitute unlawful discrimination. Managers and human resources personnel in particular need to be made aware that LGBTQ discrimination is unlawful and will not be tolerated.

In addition, employers will need to closely follow EEOC guidance and case law that follows this ruling. For example, as Justice Alito mentioned in his dissenting opinion, it is unclear what impact this ruling will have on employees who want their employers to pay for sex reassignment surgery and treatment.

© 2007-2020 Hill Ward Henderson, All Rights Reserved

For more on SCOTUS’s recent decision, see the National Law Review Civil Rights law section.

How Lawyers and Other Professionals Can Set Up Their Work-From-Home Space During COVID-19

Since the federal government’s mandated social distancing orders due to covid-19, working from home has presented new challenges for professionals at law, real estate and financial firms alike. Below are four tips on how you can get acclimated in your redefined workplace.

  1. Set Boundaries – One of the benefits of working from home is the ability to take advantage of the extra time on your hands since the work commute has vanished. However, it can be tempting to work from the most comfortable place in your home – your bed. Studies have found that working from your bed decreases productivity levels and makes it difficult to fall asleep at night because your brain associates your bed with work and stress. It is important to set boundaries between your workspace and your place of relaxation. Try setting up your space in a separate room such as the living room or guest room; in a smaller or studio apartment, you can set up a divider wall to establish designated spaces for work and play.
  2. Lights, Camera, Action! – Having your workspace near a window where natural lighting can seep through is an energy booster and stress reliever. According to medical professionals, the rays from the sun improve the communication between the regions of the temporal lobe which control emotions such as anxiety and stress. Sunlight also produces endorphins and serotonin hormones – “happy” hormones – that enhance our moods throughout the day.
  3. Minimize Distractions – While this is a challenge if your home has turned into a school and entertainment center, there are ways to avoid daily distractions. One example is limiting cell phone usage by using the “Screen Time’s Downtime” feature available on all Apple iPhone devices and many Android devices. Try setting it up during your work hours to avoid spending unnecessary time on social media. Wall calendars, daily to-do lists and designated browsers for personal and business activities can also keep your mind focused throughout the day. If you live with loved ones and/or roommates, establish “quiet hours” so everyone is on board and aware of your allocated time to focus.
  4. Create a Routine – When adapting to this new reality, creating a routine is key to maintaining your mental wellness and productivity. Shower at the same time you normally would, wear what you would normally wear to the office (although loungewear may be tempting!) and prepare your preferred type of coffee, tea or infused water to start your day. Most notably, make sure you go outside and remain active to improve blood circulation to the brain. When it’s time to return to business as usual, you won’t feel sluggish and your mind will feel ready more than ever to tackle the day.

© 2020 Berbay Marketing & Public Relations

For more on working from home, see the National Law Review Law Office Management section.

A Virtual Discussion Series | Part I: Labor, Employment and OSHA Developments and Strategies for Companies and PE Investors Navigating COVID-19 Hurdles

In this webinar, Partners in the Private Equity/Mergers and Acquisitions Practice Group, Heather Rahilly and Andrew Ritter, moderate a discussion with Partners in the Labor, Employment and OSHA Practice Group, Michael Miller and Lawrence Peikes, to discuss developments and strategies in labor, employment and OSHA for companies and investors navigating COVID-19 hurdles.

Key takeaways from this webinar include:

  • New developments and trends in labor and employment laws
  • Summary of current changes to OSHA regulations and standards
  • New litigation and regulatory concerns and how to mitigate risk
  • How legal developments in OSHA, labor and employment may affect current and future deal practice

© 1998-2020 Wiggin and Dana LLP

For more on OSHA labor regulation, see the National Law Review Labor & Employment law section.

EEOC: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws

The U.S. Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing federal anti-discrimination laws, today updated its Technical Assistance Questions and Answers, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” This Technical Assistance is intended to help employers address practical issues that may arise in their day-to-day operations and oversight of their employees as they return to work in the context of COVID-19. The EEOC has consistently reminded employers that the federal anti-discrimination laws continue to apply during the pandemic and that these laws do not interfere with the guidance issued by public health authorities, including the CDC.

What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws

The EEOC’s previously issued Technical Assistance discussed critical issues such as disability-related inquiries and medical examinations, confidentiality of medical information, and hiring and onboarding during the COVID-19 pandemic. In addition, the EEOC provided detailed guidance on handling reasonable accommodations during the pandemic. In this newly issued Technical Assistance, the EEOC focuses in even further on these and related issues, and provides an analysis of common topics that many employers have been or will be facing as employees are preparing to return to work.

The updated questions and answers include topics such as: whether an employee is entitled to an accommodation under the ADA to avoid exposing a family member who is at higher risk of severe illness from COVID-19; whether reasonable accommodations are required during the process of screening employees before they enter the worksite; whether employees age 65 or older, who are at higher risk of severe illness from COVID-19, can be involuntarily excluded from the workplace based on their age; whether pregnant employees can be involuntarily excluded from the workplace due to their pregnancy and, relatedly, whether there is a right to accommodation based on pregnancy during the pandemic. In addition, the updated Technical Assistance discusses steps employers can take to prevent and address possible harassment and discrimination that may arise related to the pandemic, particularly as against employees who are or perceived to be Asian.

EEOC Technical Assistance Questions and Answers

Employers should review this newly issued Technical Assistance from the EEOC so that they are prepared to address these issues if they arise as businesses are re-opening and employees are returning to the workplace.

©2020 Norris McLaughlin P.A., All Rights Reserved

For more on EEOC COVID-19 guidance, see the National Law Review Labor & Employment law section.

Supreme Court Rules Title VII Bars Discrimination on the Basis of Sexual Orientation and Gender Identity

Today, June 15, 2020, the Supreme Court of the United States issued a landmark decision in Bostock v. Clayton County, Georgia, holding that Title VII of the Civil Rights Act of 1964 (“Title VII”) protects lesbian, gay, bisexual, and transgender workers.  The Court held that employers who discriminate against employees based on sexual orientation or gender identity unlawfully intend to rely on sex in their decision-making. Justice Gorsuch, along with Chief Justice Roberts and the four liberal justices of the Court, wrote, in deciding the question of whether an employer can fire an individual for being homosexual or transgender: “the answer is clear.”  Specifically, “an employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.  Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”  Ultimately, “an employer who fires an individual merely for being gay or transgender defies the law.”

Bostock v. Clayton County, Georgia consisted of three individual employment cases, all of which involved an employer terminating the employment of a long-time employee shortly after the employee revealed the he or she was homosexual or transgender.  Gerald Bostock worked as a child welfare advocate for Clayton County, Georgia for over ten years and was fired shortly after participating in a gay recreational softball league.  The reason given for his termination was an allegation of misspent funds and “conduct unbecoming of a county employee;” however, Bostock argued that was pretense and the real motivation for his termination was his sexual orientation.  Both the District Court and the Eleventh Circuit held that Title VII did not include protection against discrimination towards sexual orientation.

In Altitude Express Inc. v. Zarda, Donald Zara worked as a skydiving instructor for Altitude Express in New York.  Zarda worked for the company for several years and his employment was terminated shortly after mentioning to his employer that he was gay.  While the District Court ruled in favor of the employer, the Second Circuit ruled that Title VII protects employees from discrimination based on sexual orientation.

Lastly, in R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, Aimee Stephens, a funeral home employee in Garden City, Michigan, who originally presented herself as a male upon hiring, revealed to her employer during her sixth year of employment that she would be transitioning and working and living full-time as a woman.  Shortly thereafter, she was dismissed from her job due to her transition.  Initially, the District Court found for the funeral home on two bases: (1) Title VII did not protect transgender persons nor gender identity, and (2) the Religious Freedom Restoration Act permitted the funeral home to make employment decisions based on faith.  The Sixth Circuit reversed this decision, ruling that Title VII’s “discrimination by sex” does include transgender persons and also that the funeral home had failed to show how Title VII interfered with its owner’s religious expression.

Given the split among the circuit courts, the Supreme Court took up this trio of cases to render a clear determination as to whether sexual orientation and gender identity are protected categories under Title VII.  This case of first impression signifies a key development in the interpretation and meaning of discrimination on the basis of “sex” under Title VII.  The opinion resolved the issue of whether those who drafted Title VII could have intended protection of these classes, with Justice Gorsuch explaining: “Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s con­sequences that have become apparent over the years, in­cluding its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination sup­ply no reason to ignore the law’s demands. When the ex­press terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.”

Employers must ensure that their policies, including their equal employment opportunity, harassment, and discrimination policies, reflect this opinion and prohibit discrimination on the basis of sexual orientation and gender identity.  In addition to these policy matters, employers should take actions to prevent discrimination on the basis of sexual orientation or gender identity and communicate the development in the law to employees and key decision makers in the company.

The full opinion can be found here.

© 2020 Bracewell LLP

For more on the SCOTUS Title VII decision, see the National Law Review Civil Rights law section.

BREAKING: US Supreme Court Rules Title VII Protects LGBTQ Employees

In a highly anticipated decision, the U.S. Supreme Court held Title VII of the federal Civil Rights Act protects LGBTQ employees from being fired because of their sexual orientation or gender identity.

The opinion, released on June 15, 2020, was a consolidation of three federal appellate court decisions—Bostock v. Clayton County; Altitude Express v. Zarda; and R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission. In each case, the employer terminated the plaintiff after learning that he or she was gay or transgender.

In Bostock, the 11th Circuit Court of Appeals held Title VII did not protect an employee against discrimination because of his or her sexual orientation, relying on circuit precedent. The 2nd Circuit came to the opposite conclusion in Zarda, concluding an employer discriminated on the basis of sex (including gender stereotypes) when it terminated a long-time employee. In R.G. & G.R., the 6th Circuit held Title VII protected against discrimination based on an employee’s transgender or transitioning status because such discrimination is grounded in an employee’s failure to conform to gender stereotypes.

Justice Neil Gorsuch, writing for the majority, analyzed whether discrimination because of sexual orientation or transgender status is fundamentally sex discrimination for failing to conform to gender stereotypes—an issue already determined to fall within Title VII’s scope.

In its analysis, the majority used the example of an employer who has a policy of firing any employee who is known to be gay. According to the Court, if a model employee brings a female spouse to an office holiday party and the employee is then fired due to also being female rather than male, the employer discriminated on the basis of sex, even if the intent was to discriminate on the basis of sexual orientation.

Similarly, the Court reasoned that an employer cannot discriminate against one of two otherwise identical female employees because she was identified as a male at birth. In doing so “the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.” Accordingly, such discrimination is indistinguishable from sex discrimination.

Justice Samuel Alito, joined by Justice Clarence Thomas, authored one of two dissenting opinions. Justice Alito’s primary points of disagreement with the majority were: (1) the definition of “sex,” as understood by the legislators who authored Title VII, does not include sexual orientation or transgender status; and (2) Congress has had opportunities to amend Title VII to expressly include such protections but has failed to do so.

Justice Brett Kavanaugh’s dissent relied on his interpretation of the “ordinary meaning” of Title VII, which he concluded does not include protections for sexual orientation or transgender status. As such, Justice Kavanaugh reasoned it was not the Court’s role to expand the scope of Title VII. Despite his disagreement with the majority, Justice Kavanaugh’s dissent concluded with a congratulatory note to those he would deny Title VII’s protections, “Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result.”

The upshot of the Court’s Bostock decision is effectively an expansion of Title VII’s antidiscrimination protections to LGBTQ employees. While many employers already have policies prohibiting discrimination because of sexual orientation and/or transgender status, this decision presumably authorizes EEOC charges and Title VII claims for such discrimination.

© 2020 Dinsmore & Shohl LLP. All rights reserved.

For more on discrimination protections see the National Law Review Civil Rights law section.

NLRB: Federal Court in DC Issues Promised Opinion on Election Regulations

As indicated in our previous blog on this topic, on May 30, 2020, the U.S. District Court for the District of Columbia issued a two page order invalidating five elements of the NLRB’s 2019 election regulation, based on Count One of the plaintiff’s complaint.  On June 7, the court issued its promised memorandum opinion further explaining that order.

The opinion makes three key points.

First, the Court noted that under the Administrative Procedure Act, the norm is for notice and comment rule making.  An exception in the APA, however, permits agencies to forego notice and comment requirements when promulgating “rules of agency organization, procedure, or practice.”  5 U.S.C. Sec. 553(b)(A). The NLRB had relied on this exception to promulgate the election rule without notice and comment. As the Court stated, “The nub of the instant dispute is the NLRB’s valiant effort to shoehorn five parts of its 2019 Election Rule into this narrow classification.” Slip op. at 28.

Following a thorough discussion of the five parts of the rule it had held invalid in its May 30 order, the Court concluded: “[T]he challenged provisions carry many of the indicia of substantive rules — i.e., they grant rights and impose obligations; they produce ‘significant effects on private interests’; and they ‘foreclose alternative courses of action’ or ‘conclusively bind the . . .      affected private parties.’ . . . Therefore, this Court finds the NLRB’s promulgation of these particular [five] rules without engaging in notice-and-comment rulemaking violated the APA.” Slip op. at 42-42 (citation omitted).

Second, the Court found that the five invalidated parts of the election regulation were severable from the remainder of the election rule. The Court rejected AFL-CIO’s argument that the election regulation should be invalidated in its entirety. Slip op. at 43-51. The Court stated that its severability ruling was not prejudical to plaintiffs, however, who are “always free to press an independent basis for setting aside the remainder of the rule and ask the court to do so . . . .” Slip op. at 48 (emphasis in original).

Indeed, the plaintiff’s complaint had three additional counts alleging that the election rule was arbitrary and capricious in whole and in part, and was contrary the National Labor Relations Act.  In a footnote, the Court observed: “[T]he AFL-CIO might well have argued that . . . the Court should . . . proceed to reach the merits of its alternative claims . . . . But for whatever reason, the AFL-CIO maintained that this Court need not reach its other claims, apparently assuming that the Court would agree with its severability analysis.” Slip op. at 48, n. 13.

Third, Court made it clear that the NLRB would have very broad discretion in dealing with the Court’s remand of the remaining rules for consideration in light of the Court’s opinion and order.   “[T]he agency decides what happens next when all or part of a challenged action has been invalidated.”  Slip op. at 46 (emphasis in original).

In a footnote, the Court held: “Thus, no matter how illogical it might seem to this Court for the NLRB to proceed to enforce the remaining portions of the 2019 Election Rule, it is up to the agency to determine which otherwise lawful policy proscriptions it wishes to adopt and enforce, and a simple remand of the matter gives the agency the best opportunity to make that determination in the first instance.”  Slip op. at 47, n. 12.

Following the Court’s May 30 order, the NLRB had swiftly acted to implement the remaining election regulations.  The AFL-CIO also filed a motion for clarification of the May 30 order seeking, among other things, a ruling on the swiftness of the NLRB’s action.  The Court signaled its inclination to deny that motion in its memorandum opinion, stating that “no matter how swiftly the agency undertakes to make that decision  . . . [courts] ‘do not, and cannot, police agency deliberations as a general matter . . . .’ Thus, the AFL-CIO’s recent motion . . . raises an issue that is plainly non-justiciable.”  Slip op. at 48, n. 13.

While the Court’s ruling, and the parties’ respective reactions to it, paint a bit of a muddy picture on what comes next, it is clear that there are still other shoes to drop in this case.  The Board has indicated its intent to appeal the court’s decision invalidating the five elements of the election rule.  The AFL-CIO may re-assert the counts of its complaint not addressed in the Court’s decision, or make additional arguments based on the NLRB’s actions on remand, as further grounds for invalidating the entire election rule.  Or, it may file its own appeal of the Court’s decision seeking appellate review of the Court’s decision not to deal with the other counts in the complaint.

For now, the NLRB will conduct elections in accordance with the undisturbed portions of the election rules, but how they may be impacted by further court litigation is unknown.  It therefore will be very important for employers involved in representation cases to stay up to speed on developments in this dynamic arena.

Copyright © 2020, Hunton Andrews Kurth LLP. All Rights Reserved.

For more NLRB decisions, see the National Law Review Labor & Employment law section.

What Should You Do About D&I Efforts During a Pandemic? Exactly What You Were Doing Before

The tremendous economic uncertainty emerging in the wake of COVID-19 is forcing law firm leaders to contend with challenges they’ve never faced before. People are scared, and for good reason. Given the enormous financial pressure firms feel, it’s understandable that leaders may opt to push diversity and inclusion efforts to the back burner for a while — or is it?

Let’s review what we know about the business case for creating more diverse firms.

In other words, improving law firm diversity is an imperative for any firm hoping to compete in the marketplace. That was true before the pandemic, and it’s still true today, despite how much more difficult it may be to achieve this goal.

Here’s the good news: expensive, outward-facing diversity and inclusion initiatives that are more about marketing than substance probably are not the best use of constrained law firm resources. Instead, firm leaders should consider simple, effective interventions that will protect the progress they have made in elevating more women and minority attorneys to power, and make it possible for that work to continue:

Help women and minority partners build their profiles remotely. Now that all in-person avenues to developing business are closed, firms are thinking strategically about how their attorneys should move those efforts online. But top-down orders to “leverage LinkedIn” or “keep up with your contacts virtually” are not useful to attorneys who didn’t have robust “old boy” networks to begin with. Online networking is a skill, just like other business development techniques. If your firm was providing coaching support to high-potential attorneys to help them with business development in the real world, that same support is needed now for new kinds of marketing efforts. Attorneys are going to need tutorials that walk them through best practices and provide support by phone or email. Marketing departments can create these resources or contract outside support to do this training work. Then they must oversee the execution to ensure attorneys stay part of the online conversation in their target industries. Is it possible to assign marketing department staff to this task, particular those who typically staff events and may have extra capacity?

Keep the content coming. Social media profiles are only as strong as the content attorneys have to share there. We know that implicit bias can make it more difficult for women and minority attorneys to demonstrate their subject-matter expertise and be considered for the same opportunities as less experienced white men. This makes thought leadership articles and opportunities to be featured as an “expert source” in key media outlets all the more important for building these attorneys’ reputation with prospects. When putting your firm’s experts forward on webinars, thought leadership articles and media pitches, consider who’s being included — and who’s not. If the faces of your firm’s most important expertise are all white men, you’re sending the message that your other attorneys are somehow less qualified to lead in a crisis.

Bear equity in mind when handling award nominations. The earliest and most chaotic weeks of the COVID crisis happened to coincide with an already busy time on many legal marketers’ calendars: award season. Nominations for “rising star” and other programs are typically due in spring, and gathering client testimonials, case examples and other supporting materials can be time consuming and logistically challenging under normal circumstances. And we know that the required effort (which of course comes on top of keeping up with billable work), combined with the often-gendered tendency to be more reticent about self-promotion, means that award nominees can be less than representative of a firm’s diversity anyway. This year, women bearing the brunt of new childcare and homeschooling responsibilities, along with those who care for extended family members, had even less bandwidth and energy to put themselves forward for industry honors. What can your team do to ensure that your award nominees reflect the true diversity of your emerging lawyers, rather than an oversampling of those privileged enough to have more spare time on their hands?

Make evaluations more transparent and consider what “fairness” means right now. In addition to thinking about the intersection of inclusion and business development, firm leaders will need to consider how to evaluate the work attorneys do under these extraordinary circumstances. Obviously it would not be fair to hold attorneys to the standards for billable hours that they would during a normal year, but what should revised standards look like? As noted, women are taking on a greater share of the childcare, homeschooling and household duties under lockdown, which makes it more difficult for them to bill the same number of hours or develop as much new business as men. How can you make sure they won’t be penalized for this when it comes time to make decisions about compensation and promotion? Questions about how to fairly and holistically evaluate attorneys’ work long predate the current crisis, and they are going to become more urgent in the months to come. The current system continues to reward white men above other demographic groups. It’s time for reform.

No question this is a frightening time for firm leaders, and they will want to focus their limited attention on what matters most for the survival of the firm. That shortlist should include a continued commitment to diversity and inclusion. The business case is clear, and hard-won gains for women and minorities are hanging in the balance.

© 2020 Page2 Communications. All rights reserved.

ARTICLE BY Debra Pickett of Page 2 Communications.
For more on continuing normal business operations amid COVID-19, see the National Law Review Coronavirus News section.